In the Matter of 






Matthew Stanley Quay 


Before the Committee on Privileges 
and Elections of the Senate of the 
United States. 


REPLY 


To the Brief of Argument 
in Support of Mr. Quay’s Claim to a Seat 


/ 

GEORGE WHARTON PEPPER 

*• 

HAMPTON L. CARSON 
GEORGE F. EDMUNDS 


of Counsel 





V 










REPLY 


TO THE 


BRIEF OF ARGUMENT 
In support of Mr. Quay’s Claim to a Seat. 


Although Mr. Quay is the claimant in this case 
and the right of his counsel to begin and conclude the 
argument was recognized by the Committee, the brief 
submitted on his behalf was not accessible to counsel 
for the Memorialists when their brief was in course of 
preparation. The brief on behalf of the Memorialists, 
as submitted to the Committee and distributed to the 
members of the Senate, answers by anticipation most 
of the contentions made in support of Mr. Quay’s 
claim. A brief review of all these contentions is now 
respectfully submitted. 

The printed argument on behalf of Mr. Quay 
consists of seven propositions. It is proposed to cite 
these propositions in order and then to indicate briefly 
the reasons why they are, in some instances, unsound, 
and why, in others, they have no application to this 
case. 



2 


I. 

“A vacancy ‘happens’ when it ‘happens to exist’ 
within the meaning of the Constitution, so that 
an Executive appointment may be made until the 
next meeting of the Legislature ; in other words, 
a vacancy that ‘happens’ or ‘occurs,’ or ‘takes 
place ’ during the session of a Legislature, but 
‘ continues to exist ’ after the Legislature has 
adjourned, ‘ happens ’ within the meaning of the 
Constitution and may be temporarily filled by 
Executive appointment.” 

When the Federal Convention was framing the 
section of the Constitution which deals with the elec¬ 
tion and qualifications of Senators, the Committee of 
Detail reported the following provision to the Con¬ 
vention : “ The Senate of the United States shall be 
chosen by the legislatures of the several states. Each 
legislature shall choose two members. Vacancies may 
be supplied by the executive until the next meeting of the 
legislature. Each member shall have one voted 

That portion of the report of the Committee 
which provided for the supplying of vacancies by the 
State Executive was debated and an objection was 
made to vacancies in the Senate being supplied by the 
Executives of the States. Mr. Ellsworth (acting in 
this matter as in others under the inspiration of 
Roger Sherman) contended for this grant of power to 
the Executive as being of vital importance to the 
smaller States. A compromise was finally effected, 
and the constitutional provision in its present form was 
adopted as follows : “ The Senate of the United States 
shall be composed of two senators from each State , chosen 
by the Legislature thereof, for six years ; and each 


3 


Senator shall have one vote . Immediately after they 
shall be assembled in consequence of the first Election , 
they shall be divided as equally as may be into three 
classes. The Seats of the Senators of the first Class shall 
be vacated at the Expiration of the second Year , of the 
second Class at the expiration of the fourth Year , and of 
the third Class at the expiration of the sixth Year, so 
that one-third may be chosen every second year ; and 

if vacancies happen by resignation or 
otherwise, during the recess of the 
Legislature of any State, the Executive 
thereof may make temporary appoint¬ 
ments until the next Meeting of the 
Legislature, which shall then fill such 
vacancies. 

Thus it will be seen that the power of appoint¬ 
ment in any condition of vacancy was vested in the 
Governor by the report of the Committee ; but the 
Convention struck out that provision and substituted 
the words “if vacancies happen by resignation or 
otherwise during the recess of the Legisla¬ 
ture of any State, the Executive thereof 
may make temporary appointments until 
the next meeting of the Legislature, which 
shall then fill such vacancies.’' 

The contention made in support of Mr. Quay 
would (upon the point under consideration) be suffi¬ 
ciently sound if the report of the Committee of Detail 
had been adopted by the Convention. In point of 
fact, however, the language of the Committee was 
modified by the Convention in such a way as to 


4 


exclude in advance the contention which is now made 
on Mr. Quay’s behalf. 

So far as the question involved is one of interpre¬ 
tation of language, the subject is dealt with at length 
at page 8 of the brief already submitted. 

The argument based upon the analogy of presi¬ 
dential appointments is answered on page 9 of our brief. 
In this connection it may be pointed out that if the 
Senate of the United States construes the provision 
under consideration as some of the Presidents and 
their Attorneys General have construed clause 3 of 
section 2 of Article II relating to Executive appoint 
ments, the Senate will for the first time give its 
approval to a presidential claim of right which a 
majority of the Senate have always disputed, and will 
in effect be relinquishing to the President an import¬ 
ant part of the responsibility vested in the Senate by 
the Constitution. 


5 


II. 

“ The Constitutional provision ‘ If vacancies happen by 
resignation or otherwise during the recess of the 
Legislature, applies broadly to every vacancy in 
the office of United States Senator that continues 
to exist from any reason whatever after the Legis¬ 
lature has adjourned.” 

This proposition is a re-statement of the first. 
Its principal application is to the question of the 
existence of the executive right of appointment where 
the vacancy is caused by the expiration of a prior 
term. The argument in behalf of Mr. Quay ignores 
the important distinction between the happening of a 
vacancy through the expiration of a prior term ivhere 
the vacancy could be foreseen and provided against and 
the happening of a vacancy which coidd 7 iot be foresee 7 i 
or (ifforeseen} could not be provided against. In point 
of fact, no man has taken his seat as Senator under 
an executive appointment since 1817 where the va¬ 
cancy was caused by the expiration of a prior term 
which could be foreseen and provided against. In 
Sevier’s Case the Legislature did not anticipate the 
occurrence of the vacancy, which was caused by the 
drawing of lots for a short term. In the Bell Case 
and in the Blair Case, the Legislature which had last 
assembled was not the Legislature (owing to the 
adoption of a new State constitution) which under the 
act of Congress had the authority to elect a Senator. 
In all three cases the Governor’s appointee was of 
course seated— it behig the crucial fact in each case that 
the vacancy occurred hi recess and that no Legislature had 
been in session after a vacancy bega 7 i. It is therefore 
difficult to perceive how the incomplete quotations 
from remarks made by Senators in discussing the Bell 


6 


Case can help Mr. Elkin’s position. In that case, the 
vacancy occurred in recess . In Mr. Quay’s case the 
vacancy occurred while the Legislature was in session. 
In the Bell Case, the Legislature, although it foresaw 
the vacancy, was not authorized by law to fill it. In 
the Bell Case there had never been a time up to the 
moment when Mr. Bell presented his credentials in 
which any Legislature had an opportunity to fill 
the vacancy which occasioned his appointment. In 
Mr. Quay’s case, the Legislature had such an oppor¬ 
tunity for weeks and months before the vacancy 
occurred and for a period offorty-seven days thereafter • 
How is it possible to refer to the Bell and to the Blair 
Cases except as the strongest possible illustrations of 
the contrast between a situation in which the Governor 
has a right to appoint and a situation like that in the 
Quay case in which the Governor has no such right? 

The case of State vs. Askew, 48 Ark., ’89, relied 
on furnishes no authority for the contention claimed. 
The language of the Constitution was (Art. VII, Sec. 
50) : “All vacancies occurring in any office * * * 

shall be filled by appointment by the Governor.” The 
Constitution made no limitation as to when or how the 
vacancy should occur. 

The case cited by Mr. Elkin on page 17 of his 
brief ( Stocking vs. The State , 7 Ind., 329) furnishes no 
support to the contention of Mr. Elkin. The Indiana 
Constitution (Art. V, Sec. 18) declared that “When at 
any time a vacancy shall have occurred * * * the 

Governor shall fill such vacancy by appointment. 

The case of Walsh vs. Commonwealth (’89 Pa. 
State, 425) furnishes no support to the contention of 



; 


the brief. The Constitution of Pennsylvania provided 
(Art. IV, Sec. 8) that the Governor “ shall have power 
to fill all vacancies that may happen in offices to which 
he may appoint during the recess of the Senate. 
* * *” And further provided, “If the vacancy 
shall happen during the session of the Senate the 
Governor shall nominate to the Senate before their 
final adjournment a proper person to fill said vacancy.” 
It further provided that in the case of any vacancy in 
an elective office a person should be chosen at the next 
general election unless the vacancy shall happen within 
three months preceding the time of such election. The 
case of Walsh turned entirely upon the question of 
whether there was a vacancy at all within the meaning 
of the Governor’s power, when the Legislature had, 
in the spring, passed an Act establishing a new county, 
contingent upon a vote of the people to be thereafter 
taken and that vote had been taken during a recess of 
the Legislature and the county had thereby come into 
existence. It zvas held that the vacancy had come into 
existence during a recess of the Senate within the lan¬ 
guage of the Constitution. No question arose in 
respect of the time when the vacancy happened, but 
the sole question was as to whether a newly created 
office unfilled was vacant. 

We think it may be safely stated that there is no 
case decided by any Court (excepting that decided by 
Justice Woods) which holds that, when a constitution 
or law provides that a vacancy happening during a 
particular period of time may be supplied temporarily 
by an executive appointment, the appointing power 
can be exercised when the vacancy did not begin dur¬ 
ing that period. 


8 


III. 

“The words ‘By resignation or otherwise’ are not 
words of limitation indicating the kind of vacancy 
intended to be filled by Executive appointment, but 
are used in a broad and comprehensive sense 
indicating, first, by the use of the word ‘ resignation,’ 
that the members of the Senate could resign as 
contra-distinguished from members of the English 
Parliament, who could not resign, and, second, by 
the use of the v/ord ‘ otherwise ’ that vacancies 
created in every other way, including vacancies by 
resignation, may be temporarily filled under the 
authority of the Governor to appoint.’’ 

Let it be assumed, solely for the moment, that 
both branches of the above proposition are true. It 
will then be perceived that neither branch has any¬ 
thing to do with the case of Mr. Quay. Mr. Quay 
did not resign, and therefore no question of resigna¬ 
tion is here involved. If the term “otherwise” is 
broad enough to include the happening of vacancies 
by the expiration of a prior term, the only conclusion 
which can be drawn is that the Senate of the United 
States made an erroneous decision in the Mantle Case 
and in the Corbett Case. The conclusion does not 
touch the case of Mr. Quay, which stands distinct from 
all the others in that in his case the vacancy occurred 
during a session , while in the other cases it occurred in 
recess ; and in his case the Legislative had an oppor¬ 
tunity to act after the vacancy had occurred , while in 
the other cases it had no such opportunity. In other 
words, if counsel for Mr. Quay were to overthrow the 
solemn decisions of the Senate in the two cases cited 
and were to succeed in establishing the proposition 
under discussion, he would be making no progress in 


9 


the direction of validating Mr. Quay’s claim, because 
in Quay s case the governing facts are different, and 
different principles are involved. 

Again it will be perceived, in view of the distinc¬ 
tions pointed out above, that the argument for Mr. 
Quay goes far beyond parallel and analogy in seeking 
to press into service extracts from arguments made in 
the Bell Case, the Mantle Case and the Corbett Case. 
Indeed, it is proper to call attention to the fact that 
while every Senator who voted against Mr. Corbett 
should, on principle, vote against Mr. Quay; yet 
many of those who voted to seat Mr. Corbett may 
with perfect consistency take a position adverse to 
Mr. Quay’s claim ; for in the Corbett Case principles 
were not in dispute, but Senators divided largely on 
a question of fact as to whether there had been a 
legislative opportunity to provide for the vacancy 
thereafter to occur. There was strong reason in the 
contention of those who voted for Corbett to the 
effect that there had been no opportunity for legisla¬ 
tive action, and therefore that the case was similar to 
the cases of Blair and Bell. In Mr. Quay’s case the 
issue is not an issue of fact. The facts are undis¬ 
puted. It is a question to be decided purely upon 
principle and upon senatorial authority, and we submit 
that both require the rejection of his claim. 


IO 


IY. 

“ The clear intention of the framers of the Constitution, 
as shown by the power to temporarily fill existing 
vacancies by Executive appointment, was that 
representation in the Senate should always be kept 
as nearly full as possible.” 

This proposition is not entirely clear. If it means 
that the framers intended that representation in the 
Senate should always be kept as nearly full as pos¬ 
sible consistently with the plain mandate of the Con¬ 
stitution as to the way in which Senators shall be 
chosen—then the proposition is a truism and is wholly 
unobjectionable. If it means that the framers intended 
that senatorial vacancies should always be filled in 
accordance with the Constitution of the United States 
when that is practicable, but that, when a constitu¬ 
tional method is impracticable, the vacancies should be 
filled otherwise than as the Constitution directs—it is 
a proposition that is obviously unsound and carries 
with it its own refutation. In other words, it does not 
advance the discussion of Mr. Quay’s claim to a seat 
to assert that the representation from the State oi 
Pennsylvania must always be kept full. That is merely 
another way of saying that he is entitled to the seat. 
But this is the very question that is before the Senate 
for decision, and it cannot be set at rest by the asser¬ 
tion of a conclusion. 

It has been shown in the brief heretofore filed that 
the executive right of appointment was a provision 
intended to secure to the States the right to be repre¬ 
sented at all times in the Senate (pages 4-6). In order 
to avail themselves of that right, the Constitution pro¬ 
vides that the State Legislatures are to elect the 


Senators. If the Legislature has an opportunity to 
elect and does not take advantage of it, such failure to 
elect is not a matter with which the Constitution of 
the United States concerns itself. If, indeed, theLeois- 
lature has had no opportunity to act , then the Constitu¬ 
tion takes care that the State shall have its opportun¬ 
ity by giving to the Governor the right to make a 
temporary appointment if he deems it expedient. It 
has been pointed out (pages 13 and 14 of former 
brief) that it is optional with the Governor whether to 
appoint or not. The Legislature may fail to elect 
and the Governor may think it unwise to appoint. 
This actually happened in Pennsylvania in the case of 
William Bigler in 1855. If the theory of the framers 
was that under all circumstances the Senate should be 
kept full, they would have adopted the report of the 
Committee of Detail instead of rejecting it by the adop¬ 
tion of a decidedly different clause; and they would 
have made it mandatory upon the Governor to act, 
instead of leaving it optional with him. No one has 
been bold enough to argue that “ may” here means 
“ shall,” in view of the remarks of Mr. Ellsworth cited 
at page 6 of the former brief. 

We earnestly request the Senate to consider the 
effect of giving to the Governor of a State a direct 
inducement to prevent the Legislature from filling a 
vacancy (see page 14 of former brief). No more 
vicious application of the proposition under considera- . 
tion can be conceived of than one which would result 
in thus keeping the Senate full at the expense of con¬ 
stitutional principles. 


I 2 


V. 

“The Constitutional provision which authorizes the 
Governor to make temporary appointments applies 
to all vacancies that may exist during a recess, 
regardless of whether a Legislative session, either 
in whole or in part, has intervened since the va¬ 
cancy occurred. The vacancy exists whether a 
session of the Legislature intervened or not, and 
there is no sufficient reason why it should not be 
temporarily filled by Executive appointment.” 

To maintain this proposition, counsel for Mr. 
Quay must show that what Attorney General Wirt 
regarded as “the literal sense and natural import” of 
the phrase, “If vacancies happen during the recess,” 
is in fact not its true meaning. He must then show 
that the solemn decision of the Senate in the case of 
Kensey Johns (decided in 1794; Taft, page 1) was 
erroneous, although Ellsworth, the champion of the 
executive power, was a member of the committee 
which reported adversely to the claimant’s right, and 
voted with the majority in refusing to seat him. He 
must next show that the case of John B. Allen was 
unjustly dealt with by the Senate in 1893. He must 
next meet and overcome the argument that it is unwise 
to recognize the right of a Governor in a matter affect¬ 
ing the right of Senators to their seats , under constitu¬ 
tional language which has always led the Senate to 
deny the presidential right of appointment in cases 
merely affecting the discharge of a senatorial duty. 
Finally, he must induce the Senate to overrule its 
solemn decisions in the Mantle and Corbett Cases ; 
for to hold that a Governor may appoint where the 
Legislature has been in session since the occurrence 



*3 


of a vacancy necessarily involves the position that the 
Governor may appoint where the opportunity for leg¬ 
islative action occurred before the vacancy happened. 

In the brief submitted on Mr. Quay’s behalf, no 
serious attempt is made to discharge this burden of 
proof, except by an appeal to three different prece¬ 
dents. One is the series of opinions by Attorneys 
General ; as to which see page 9 of the former brief. 
The second includes a decision of the Attorney Gen¬ 
eral of Pennsylvania in the case of a Factory Inspec¬ 
tor ; a decision of the Supreme Court of Rhode Island 
and a decision of the Supreme Court of Oregon. 
These authorities are not in point, as appears from the 
following considerations : 

1. The decision of the Attorney General of Penn¬ 
sylvania is inapplicable for the simple reason that Sec¬ 
tion 5 of the Act of May 20, 1889 (P. L. 243, and not 
P. L. 248 as cited) made it the duty of the Governor, 
“immediately after the passage of this act,” to ap¬ 
point, with the advice and consent of the Senate, a 
Factory Inspector. It was, therefore, the case of the 
creation of a new office, the act being silent as to the 
time of the happening of the vacancy . It being the duty 
of the Governor to act, it was held that the inaction of 
the subordinate body, the State Senate, should not be 
permitted to defeat the will of the people. 

2. The Rhode Island case (In re the Representa¬ 
tion Vacancy, 15 R. I., 621) merely decides that where 
the Rhode Island Assembly had declared Pirce elected 
to the National House of Representatives, and the 
latter body had rejected him, a vacancy had happened 
under such circumstances that the Governor had power 
to issue a writ of election to fill the vacancy. It is 


H 


proper at this point to contrast the language of Article 
i, Section 2 of the Constitution of the United States 
with the language of Section 3 of the same article. 
The fourth paragraph of Section 2 is as follows : 

u When vacancies happen in the Representation 
from any State , the Executive Authority thereof shall 
issue Writs of Election to fill such Vacancies. 

It will be noted that this provision is silent as to 
the time of the happening of vacancies. The people 
of the Commonwealth are always in session and need 
only to be called upon to fill the vacancy, when¬ 
ever and however the vacancy may have occurred. 

Contrast with this provision the language of Sec¬ 
tion 3, which is as follows : 

“The Senate of the United States shall 
be composed of two Senators from each 
State, chosen by the Legislature thereof, for 
six years; * * * And if vacancies happen by 
resignation or otherwise during the recess of 
the Legislature of any State the Executive 
thereof may make temporary appointments 
until the next meeting of the Legislature, 
which shall then fill such vacancies.” 

It will be seen, therefore, that in the case of the 
House only one question is to be asked ; namely, Has 
a vacancy happened ? If the answer is affirmative, 
the Governor issues a writ of election. This is all that 
is decided by the Rhode Island case cited by Mr. Elkin. 
In the case of the Senate, on the other hand, the 
express language of the Constitution requires that two 
questions shall be asked ; namely, (1) Has a vacancy 
happened? and, if the answer is affirmative, then (2) 


i5 


When did it happen ? If it happened while the Legis¬ 
lature was in session, it is not a case in which the 
executive authority can act. If it happened when the 
Legislature was not in session, it is a possibility that 
the Legislature had an opportunity to provide for it in 
advance or an opportunity to fill it after it occurred. 
In the former event, precedent has now settled it 
(departing from a view at one time entertained) that 
the Governor has no rights. In the latter event, the 
fact is that there has never been a time in the history 
of the Government when the claim of a Governor’s 
appointee has been recognized. In short, in the case 
of the Senate as distinguished from the case of the 
House, the Governor has no power except when the 
vacancy happened at such a time that neither before 
nor since its occurrence has the Legislature had an 
opportunity to fill it. 

It thus appears that the Rhode Island case, deal¬ 
ing as it does with the provision relating to the House, 
has not even a remote application to the question 
under discussion. We have been unable to find the 
Oregon case cited by Mr. Elkin as State vs. Johns , 
2 Oregon, 507. Search has been made through all 
the Oregon reports, and no case of that name has 
been found except one in 15th Oregon, 27, which deals 
with a question of criminal law. 

3. The third authority appealed to by Mr. Elkin 
is an extract, shorn of its context, from the remarks 
of a Senator in the discussion of the Bell Case. Again 
we call attention to the fact that in the Bell Case the 
vacancy occurred in a recess of the Legislature ; in the 
Quay case it occurred in session. In the Bell Case the 
Legislature did not sit in the interval between the occur- 




i6 


rence of the vacancy and tJie date of the appointment; 
in the Quay case it sat for forty-seven days. What 
useful purpose is subserved by an attempt to show 
that one who advocated the seating of Mr. Bell ought, 
on principle, to advocate the seating of Mr. Quay? 
The crucial facts in the two cases are different, one 
claim being supported by the Constitution and the 
other being asserted in the teeth of it. 


17 


VI. 

“ The Federal Constitution is the supreme law of the 
land and the paramount authority in all matters 
touching the rights of individual citizens and the 
duties of Federal, State and all other public 
officers.” 

The validity of this proposition is not open to 
question. We do not for a moment contend that a 
provision of the Constitution of Pennsylvania can in 
the smallest degree limit or restrain the operation of 
the Constitution of the United States. It will be per¬ 
ceived, however, that the Constitution of the United 
States authorizes executive appointments in case of 
vacancies happening “ during the recess of the Legis¬ 
lature” of any State, but it does not undertake to regu¬ 
late the sessions of State Legislatures or to deter¬ 
mine when they shall sit or when they shall be in 
recess. On the contrary, the Constitution of the 
United States expressly authorizes each State to 
regulate the time of electing Senators and Representa¬ 
tives, subject to the power of Congress to alter such 
regulations. The people of Pennsylvania, therefore, 
have the right to determine how often their Legisla¬ 
ture shall meet and the occasions upon which it shall 
be called together. In the Constitution of Pennsyl¬ 
vania the people of that Commonwealth have exer¬ 
cised their right by providing that, in case of a 
vacancy in the office of United States Senator in a 
recess between sessions, the recess shall be promptly 
brought to an end and the Legislature assembled by 
the call of the Governor for the purpose of discharg¬ 
ing the duty laid upon the Legislature by the Consti- 


18 


tution of the United States. The exact language of the 
Constitution of Pennsylvania is cited and its significance 
discussed under Proposition VII (infra). Suffice it to 
say at this point that the Constitution of Pennsylvania, 
so far from being in conflict with the Constitution of 
the United States, is so framed upon this point as to 
be ancillary to the National Constitution, in that it 
provides the machinery for accomplishing the purpose 
which that instrument has in view. 


19 


VII 


“ The provision of the Pennsylvania State Constitution 
in reference to the calling of an extra session of the 
Legislature to fill a vacancy in the office of United 
States Senator does not abrogate or annul the pro¬ 
visions of the Federal Constitution under which 
the Executive makes temporary appointments to 
fill vacancies.” 

This proposition we heartily endorse. The pro¬ 
vision of the Constitution of Pennsylvania does not 
abrogate or annul the provisions of the Federal Con¬ 
stitution nor does it conflict with them, but is support¬ 
ive of and ancillary to them, as explained under 
Proposition VI. The provision of the Constitution of 
Pennsylvania is as follows : “ The General Assembly 

shall meet at twelve o clock noon , on the first Tuesday 
ofi January every second year, and at other times when 
convened by the Governor , but shall hold 710 adjo 7 i 7 ' 7 ied 
amiual session after the year one tho 7 isa 7 id eight hu 7 i- 
dred aiid seventy-eight. In case of a vacancy in 
the office of United States Senator from 
this Commonwealth, in a recess between ses¬ 
sions, the Governor shall convene the two 
Houses by proclamation or notice not exceed¬ 
ing sixty days, to fill the same.” 

Under the first branch of the above provision the 
Governor is authorized to convene the Legislature 
whenever he thinks proper. It is purely a discretion 
vested in him, and is not reviewable otherwise than 
by impeachment. To this branch of the provision the 
authorities cited by Mr. Elkin are applicable. Then 
immediately follow the words to which those authori- 


20 


ties have no application : “ In case of a vacancy in 
the office of United States Senator from this Common¬ 
wealth , in a recess between sessions , the Governor 
shall convene the two houses, by proclamation 
on notice not exceeding sixty days, to fill the 
same.” Thus, in the first branch of the para¬ 
graph, a poiver is given to the Governor to convene 
the Legislature in his discretion. In the second 
branch, which is absolutely useless unless mandatory, 
he is commanded to do it on a short notice and for the 
special purpose in question. The clause does not 
speak of a vacancy that may “happen ” in a recess, 
but it speaks of the existence of a vacancy, whatever 
its cause or time of origin. If the case were one in 
which the Governor had the power of appointment , he 
could appoint—not fill —until the next meeting of the 
Legislature, which the Constitution had commanded 
him in every case of vacancy to assemble on not more 
than sixty days’ notice. When the condition of 
vacancy existed in recess his duty attached. He was 
given no such discretion as he was given in the pre¬ 
ceding lines of the section. The contrast is as com¬ 
plete as language could make it. The command was 
attached to the event, and, therefore, the duty to issue 
the proclamation for assembling the Legislature was 
an immediate duty to be performed as soon as possible. 

The people in their fundamental law have said : 
“We will have no Governor’s favorite or Governor’s 
creator representing us in the Senate at his mere will, 
for more than sixty days.” In this case, therefore, the 
Governor’s commission would have expired long ago, 
or if not, it would have been because the Legislature 
he was commanded to convene still continued to sit 


21 


without having chosen a Senator. The claim of right 
under the Governor’s commission is now, therefore, a 
bald demand that the Senate shall approve and con¬ 
firm an usurped and forbidden power. 

It was suggested at the hearing that the Governor 
might have thought that a called session would be in 
the same deadlock that had existed before. It is sub¬ 
mitted that such a consideration was not his affair at 
all. His duty did not depend on Jus view of what 
might happen or not happen in the proceedings of the 
independent body having primary authority. If it can 
be imagined that he had such fears, it may better and 
with greater probability be thought that he refused to 
convene the Legislature because he feared that his 
favorite would fail and another person be chosen. 


It is submitted that the propositions relied upon 
by counsel for Mr. Quay have now been fairly answered 
and disposed of in their relation to this case. At the end 
of the brief submitted on behalf of Mr. Quay references 
to the Senate precedents have been collected, but no 
great stress is laid upon them—for the obvious reason 
that they establish principles utterly inconsistent with 
Mr. Quay’s claim to a seat. Reference is indeed made 
to the fact that since the adoption of the Federal Con¬ 
stitution there have been 156 executive appointments 
to fill vacancies in the Senate. No reference, how¬ 
ever, is made to the much more important fact that in 
no case in the entire list has the Senate seated a 
Governor’s appointee where the vacancy occurred 
while the Legislature was in session; that in no case 
has such an appointee been seated when the Legisla- 




22 

ture had ail opportunity to fill the vacancy between its 
occurrence and the date of the appointment; and that 
in no case since 1817 has an appointee been seated if 
the Legislature had an opportunity to provide for the 
vacancy before the date of its occurrence. 

In connection with the statement in the appendix 
to Mr. Elkin’s brief that the precedents of the Senate 
are not uniform upon the question under considera¬ 
tion, we respectfully beg to refer to our brief hereto¬ 
fore filed, containing (at page 16) a discussion of the 
Senate precedents and at its end a tabular analytical 
statement of the contested cases decided by the 
Senate since 1789. We submit that the conclusions 
which have been reached upon principle are abun¬ 
dantly sustained by senatorial authority, and that both 
upon principle and authority the claim of Mr. Quay 
should be rejected by the Senate. 

GEORGE WHARTON PEPPER, 
HAMPTON L. CARSON, 

GEORGE F. EDMUNDS. 




*3 


Note by Mr. Edmunds. 

I have not, down to this time, had the opportunity 
to see the report of Mr. Elkin’s oral argument before 
the Committee in which he read selected extracts from 
the reports (never revised) of my remarks in the Bell 
and Blair Cases. If those extracts are of the least 
interest to the Committee or the Senate, I beg to ask 
that the whole of what I said may be read. It will then 
appear that my present position is absolutely consis¬ 
tent with what I then contended, namely : 

1. That the vacancy must happen— begin —in the 
recess of the Legislature. This was the fact in the 
Bell and Blair Cases. It was not the fact in this case. 

2. That when a Legislature had sat after a vacancy 
began the Governor could not lawfully appoint. 

3. That the Senate ought to be kept full by con- 
stitutional means ; and so, as the letter of the Consti¬ 
tution named, as I thought, any vacancy beginning in 
a recess when no Legislature could fill it, the Governor 
had the right to appoint. And I also said that the 
Senate, for its own honor, ought to stand by its pre¬ 
vious solemn and deliberate decisions. 

GEORGE F. EDMUNDS. 






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